I’ve said this before, I’ll say it again: I hope to hell Chelsea Manning’s advisors are cognizant of the ways her attempts to avoid testifying against Julian Assange may put her in unforeseen legal jeopardy.

I’m thinking of that anew given my consideration of what I consider to be a distant, but real, possibility: that the US government would offer Assange a plea deal on the current charge he faces in exchange for testimony in a range of other issues. The idea is crazy, but perhaps not as crazy as it sounds.

As I laid out in this post, it seems the US government has been carefully orchestrating the Assange arrest since Ecuador first applied for diplomatic status for him in 2017 in an attempt to exfiltrate him, possibly to Russia. They’re now on the clock, with (depending on which expert you ask) just 44 more days to lard on the additional charges multiple outlets have reported are coming. Meanwhile, he’s being held at Belmarsh, with conflicting stories about what kind of visitors he’s been permitted — though the UN Special Rapporteur for Privacy did visit him this week. Though I’ve asked some top experts, it’s not entirely clear whether, if he were being interrogated right now, that’d be under UK law or US law; the former has fewer protections against self-incrimination for people being detained.

One passage of the Mueller Report may provide an explanation for why his prosecutors didn’t obtain Julian Assange’s testimony.

The Office limited its pursuit of other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media-in light of internal Department of Justice policies. See, e.g., Justice Manual §§ 9-13.400, 13.410.

Assange would fall squarely within DOJ policy covering people who are subjects or targets of an investigation for activities related to their news-gathering activities.

Member of the news media as subject or target. In matters in which a member of the Department determines that a member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the member of the Department requesting Attorney General authorization to use a subpoena, 2703(d) order, or 3123 order to obtain from a third party the communications records or business records of a member of the news media shall provide all facts necessary to a determination by the Attorney General regarding both whether the member of the news media is a subject or target of the investigation and whether to authorize the use of such subpoena or court order. 28 C.F.R. 50.10(c)(5)(i). If the Attorney General determines that the member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the Attorney General’s determination should take into account the principles reflected in 28 C.F.R. 50.10(a), but need not take into account the considerations identified in 28 C.F.R. 50.10(c)(5)(ii) – (viii). Id. Members of the Department must consult with the PSEU regarding whether a member of the news media is a subject or target of an investigation related to an offense committed in the course of, or arising out of, newsgathering activities.

The EDVA case appears to have gotten over this policy (perhaps by distinguishing the assistance on cracking a password from newsgathering activities); but it’s not clear Mueller did (especially given the discussion of First Amendment considerations in passages relating to WikiLeaks). In any case, this calculus may change given that he’s in British, not US custody.

And there has been very little reporting on what’s going on with him — or with US investigations into him.

There are a number of investigations the government would love to get his testimony on, including:

Testimony against Joshua Schulte

Schulte is the accused Vault 7 leaker. WikiLeaks has been far less circumspect about the possibility he’s their source than with other leakers (while also engaging in far less of an effort to lay the case that he’s a whistleblower). Plus, the government has video evidence of Schulte attempting to leak classified information.

But thus far, Schulte’s prosecution has been slowed by CIA’s reluctance to share the classified information Schulte needs to defend himself. Plus, the FBI apparently bolloxed up the initial search warrants for Schulte (in what I suspect was a sloppy effort at parallel construction), which Schulte has been trying to win the ability to speak publicly about for over a year; he recently appealed a decision denying him a request to exempt those initial warrants from his protective order.

To the extent that Assange and Schulte (if he is really the Vault 7 source) communicated — and there’s good reason to believe WikiLeaks did communicate in advance of this publication — then Assange might be able to provide testimony that would get beyond the classification problems.

Testimony about the response to his pardon requests (including Roger Stone’s role in it)

I also believe that DOJ continues to investigate the long effort — an effort that includes Roger Stone, whom prosecutors say is still under investigation — in brokering a pardon for Assange, possibly in part for Assange providing disinformation about where the Democratic documents came from. Consider that, as recently as November, Mueller was trying to learn whether Trump had discussed pardoning Assange before his inauguration, a question about which Trump was especially contemptuous, even given his overall contempt for responding to questions.

Then there’s a subtle point I find really interesting. When the Mueller Report lays out all the times Don Jr magnified Russian trolls, it noted that the failson’s fondness for Russian propaganda continued after the election.

The page-long section (page 60) that lays out Don Jr’s innocuous pre-election interactions (which is how I described them when they were first published) does not, similarly, note the President’s son’s more damning interactions with WikiLeaks that took place after the election, where Assange once privately…

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And then publicly asked for an Ambassadorship that would amount to a pardon.

Given the thoroughness of the report, I find the silence about these exchanges to be notable.

Admittedly, one aspect of the pardon campaign implicates Assange far more than (at least given the public details) it does Trump: his seeming attempt at extortion using the CIA’s hacking tools. But that doesn’t mean the government wouldn’t like his testimony about the larger effort, and I have reason to suspect that is something they were pursuing via other channels as well.

WikiLeaks’ ongoing interactions with Russia

Finally, I’m sure the US government would be willing to give Assange some consideration if he offered to describe his interactions with Russia over the years. The most public aspect of that was the WikiLeaks effort to get Snowden safely out of Hong Kong, which ended unexpectedly in Russia. But there are also credible allegations WikiLeaks engaged in some catch-and-kill of damning documents, most publicly with an incriminating document from the Syria Files. Emma Best looks more closely at that incident in a longer profile of a Russian hacker, Maksym Igor Popov, who seemed to shift loyalties back and forth from the US to Russia even while cultivating Anonymous.

Simultaneously, Sabu, who had been boasting about an alleged breach of Iranian systems, pivoted to the then-pending Syria files. “We owned central syrian bank and got all their emails,” he told Popov. There were “a lot of scandals” in those emails. In the 2012 exchange, Popov is told about an alleged email revealing that Syria had secretly sent Russia billions of Euros. Sabu appears to confuse the amount, which was 2 billion, with an amount from a similar transfer involving an Austrian bank. Reporting by The Daily Dot implies that the two emails were often discussed in the same conversation, while also revealing that the email Sabu was describing to the alleged Russian contractor was omitted from WikiLeaks’ eventual release.

WikiLeaks responded to the reporting by claiming that they “either never had the data or [that it was] in some strange MIME format so it isn’t indexed,” and that the reporting was an attack on WikiLeaks that was meant “to help HRC.”

Popov was impressed by Sabu’s description of the Syria emails, though he briefly confused them with another, unspecified cache that Sabu hinted Popov helped release. “If you want real access to the emails, I can [give it to you],” Sabu offered. Popov responded ecstatically, saying he could use it to create disinformation and fabricate conspiracies. Undaunted by Popov’s intended use for the emails, Sabu said he’d “try to set it all up soon.”

This exchange occurred several months after WikiLeaks received the first batch of the Syria files and several weeks after WikiLeaks gave the LulzSec hackers private access to a search engine to help parse the Stratfor emails which the group had also provided to WikiLeaks.

If Popov acquired early access to the Syria files, it would have been the score of a lifetime, giving him an exclusive early inside look at corporations and governments. However, as any later logs of discussions between Popov and Sabu aren’t part of the leaked file, it’s unclear if Popov actually received early access to the Syria files.

Already by this time period in 2011, some former Anons were expressing concern that their operations were being facilitated by Russian infrastructure.

Some followers came to believe that the leaders sought only personal aggrandisement or were effectively in cahoots with the organised criminals who may have raided Sony’s credit-card hoard after Anonymous knocked down the door. Even stalwarts such as Housh are unhappy that much of Anonymous’s infrastructure is now housed on computers used by Russian criminals. “It’s not like the Russians wanted us to get HBGary, but I want to know personally why they are doing this,” he says of the chat hosts. “Where is the money coming from?”

To be sure: a tie with Anonymous is different than a tie directly with WikiLeaks, even if Anonymous was serving as one of WikiLeaks’ important source streams at the time. Further, Best notes that there’s no evidence in available files that Popov interacted directly with WikiLeaks — nor would there be, given the scope of the publicly available chat logs.

But, particularly given the allegations that Assange fed the Seth Rich hoax as part of an effort to deny that he knew he had gotten the Democratic files from Russia, I’m sure the US government would love to know from him about any ties between WikiLeaks and Russia.

Offering Assange a plea deal might be one way to close the book on WikiLeaks without the political controversy of a trial.

The question, of course, is whether Assange would take one. Admittedly, it’s highly unlikely.

Still, as noted, he repeatedly claimed he’d love to tell all if he could avoid prison altogether. But even in a best case scenario, he’s looking at a long extradition fight from Belmarsh in conditions that are reportedly pretty shitty. A plea deal might be one way to limit how much more time in custody he faces.

Which could bode poorly for people like Chelsea Manning, making significant sacrifices to protect Assange.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

Gee, I don’t see him rolling over. I do wonder if there’s more info on a server somewhere he might unleash on his tormentors. I would like to see GG release the rest of the Snowden files and see what shakes out from them. Then of course if the govt. changes in England they might just release him were his best bet is in Russia if they would allow him in.

The thing that makes me think it’s possible is that I think he is a narcissist more than an ideologue or true believer, and what’s good for Assange is most important in his own mind.

On the other hand, I also think he is extremely paranoid, especially in the Pynchon sense — “Paranoids aren’t paranoid because they’re paranoid, but because, f***ing idiots, they keep putting themselves in paranoid situations.” I’m leaning pretty heavily toward that keeping him from cooperating.

Russia would let him in, no problem. Then we’d all hear how poor Assange, had a heart attack, due to all the stress he was under all those years in the embassy. End of problem. In my opinion Assange may be as much of a “problem” to the Russians as to the Americans. People like Assange, who collect information, collect it on everyone, not just those some may think of as the “enemy” of the moment.

Is the “US government” of one mind on these things. Is the DOJ’s mind even one mind?. Say the FBI’s, EDVA’s, and Barr’s minds might not aling? What about the CIA and other assorted intelligence shops like ones in the DOD. Are they all on the same page in regard to Assange who I assume they hate on principal. The principal that he’s playing their game on their field.

Suppose Barr’s mind is simply about helping Trump and the GOP? For all practical purposes he is calling the shots on this anyway. Everyone else can go pound sand.

This is why I don’t think Assange will ever be extradited to the US. Marcy linked a Slate article by Leah Litman on how Barr has charged a Massachusetts judge for obstruction for releasing a prisoner sought by ICE because he determined that ICE had made an error in identification. Although IANAL, it’s pretty clear to me that it’s not obstruction if the judge believes he’s attempting to stop a false arrest.

Barr is really intruding into the “president is king” territory and, as Litman shows, it goes contrary to everything Barr has said about obstruction in Mueller.

If the president is king, then he must be protected against any evidence showing he is guilty of crimes… including Assange’s evidence.

Flipping Assange assumes there is some interest in a Republican administration doing something more than blocking release of an unredacted Mueller report and actually allowing a full public accounting of its findings. I don’t see that happening.

The Mueller report turns out to be a dud, especially if the Democrats fail to use it an impeachment referral. It doesn’t matter what it documented, which was mostly in the public record to begin with, Mueller decided to base a conspiracy investigation on a legal and charging standard he implicitly knew beforehand he would never follow.

So even before Barr and Rosenstein considered voting to block a criminal conspiracy indictment of Trump with the Russians on election interference in 2016, Mueller never intended to indict based on DOJ policy regardless of whether the threshold for proof beyond a reasonable doubt was met or not. Why would you sabotage your legal case before it was made or you finish it? That’s seems stupid on its face regardless of intent.

Why would you give in to every effort that sought to stymie your case from not interviewing the president in person or permitting him to dictate which areas of inquiry he would respond when the one area you asked about, you never intended to prosecute even if you determined the responses led to criminal intent?

You can argue that the president’s lawyers did a good job of limiting his direct testimony, or you could say Mueller failed in the most ripe area of his investigation to determine criminal intent, which was obstructing various aspects of the probe. Even if its true that what Mueller determined in his investigation was highly damaging to Trump’s viability in office, what does it matter if it isn’t acknowledged by the Justice Department and acted on by federal authorities or Congress?

It’s just a whitewash and essentially an expensive cover-up in real time. Trump picked Sessions, Whitaker and Barr for a reason. They were all chosen to protect Trump from post-election legal inquiries by the alleged deep state and Congress. Of the three, Barr turns out to be the most partisan and most deeply conflicted, both in terms of his own historical conduct for a prior president and administration engulfed by scandal, and by his own connections to Russian banking influence and close Trump business associates. You haven’t heard much about this before, and for good reason.

The fix was in once he was confirmed. And it continues unless the Democrats do their duty.

Manafort’s breach of his cooperation agreement with the Special Counsel’s Office is a likely reason that Mueller could not indict the Trump campaign for Conspiracy to Defraud the United States. Manafort’s testimony may even be the “inadmissible evidence” to which the Mueller report alludes when stating that Donald Trump Jr.’s “willfulness” could not be shown with “admissible evidence.”

Ev’rything is divided
Nothing is complete
Ev’rything looks impressive
Do not be deceived
You don’t have to wait for more instructions
No one makes a monkey out of me
We lie on our backs, feet in the air
Rest and relaxation, rocket to my brain
…
Snap into position
Bounce till you ache
Step out of line
And you end up in jail
…
I can’t believe it
And people are strange
Our president’s crazy
Did you hear what he said
Business and pleasure
Lie right to your face
Divide it in sections
And then give it away

There are no big secrets
Don’t believe what you read
We have great big bodies
We got great big heads
Run-a-run-a-run it all together
Check it out – still don’t make no sense
Makin’ flippy floppy
Tryin to do my best
Lock the door
We kill the beast
Kill it!

I wish you’d explain what “unforeseen legal jeopardy” Chelsea Manning may be in if Assange accepts a plea deal. That outcome would presumably moot Manning’s grand jury resistance and result in her immediate release from jail. Also, you seem to accord “Manning’s advisors” more influence over her than is likely. When she retained attorney Moira Meltzer-Cohen, who specializes in representing grand jury resisters, it’s doubtful Manning was vacillating. I think Chelsea hired Moira precisely because she was already determined on the course of action we’ve seen unfold over the past two months. I reject any notion that Chelsea Manning, of all people, is being manipulated or poorly advised by her legal team. Chelsea is simply too smart, too savvy by now in the ways of lawyers, and too independent minded to be anyone’s pawn.

On June 3, 2013, at Ft. Meade, Maryland, the long-delayed court-martial of PFC Manning finally began. In his opening statement, lead defense attorney David Coombs called his client “young, naive, but good intentioned.” Nearly eight weeks later, Coombs delivered his closing remarks and picked up where he’d left off, referring to his client 17 times as “young” and six times as “naive.”

In May 2016, Manning’s appellate lawyers revived this mantra, arguing that Manning “naively believed” that disclosing classified materials to WikiLeaks was “the only way” to expose the abuses she’d found, and further describing her action as “a mistake borne out of youth.”

Yet when she stole and leaked 734,885 U.S. Govt files, Manning was age 22 and had been in the Army 2½ years. Chelsea Manning is now 31, and is no longer naive—if she ever was. Since 2013, the courts have rightly held her to adult standards. So should we.

Correct. There are people who remain naïve their entire lives. They’re not stupid, they aren’t immature, they’re simply naïve. For some its a better way to get through life. For others, they refuse to see what their eyes tell them. It makes it possible for them to get through life. Some believe there is essential goodness in even evil people. Then there are people who trust no one.

To put it in the least prejudicial terms, Manning seems determined to live a drama filled life. While one can appreciate making principled stands there comes a time where one has to question if the motivation is principal, or to put it in pejorative terms, publicity. In many ways this is a way to tell the Assange story.

I share your cynicism, but Manning’s motivation may not be either/or. It can be both principle and publicity. Being behind bars at this time is undoubtedly propitious. Three days from now, the feature documentary XY CHELSEA will receive its world premiere at the Tribeca Film Festival, and thereafter play internationally in selected theaters. On June 7, the film will also receive its American broadcast premiere on Showtime. Its subject sitting in jail during this period—ostensibly as a protest against what her supporters consider government overreach—can only heighten interest. Of course, we have no way of knowing what part (if any) such commercial considerations played in Chelsea’s grand jury resistance. Still, I’m glad you pointed it out. People too often treat Chelsea Manning simplistically and miss the complexity of her story.

My name is Alan Kurtz. Your scare quotes are not necessary. I am a birthright U.S. citizen living in the United States. I have never been to Ukraine and have no desire to go there. I am not paid nor am I a whore. I have commented about Chelsea Manning because I am interested in Chelsea Manning. I have commented only on posts where emptywheel mentions Manning. If I violated the rules of this blog, then you as emptywheel legal editor (per your Twitter profile) undoubtedly have the capacity to expunge my past comments and block my IP address from posting future comments. I can certainly understand your desire to control the discussion and keep it as one-sided as possible.

Understand as most of our long-time regulars do that we get trolls. Not just plain vanilla concern trolls, either. Make reasoned arguments providing sources/citations to make your case if you have one and you’ll do fine. But we don’t do concern trolling here. We don’t have the resources for it.

How are community members to know you’re a member of Manning’s fan club versus something else — like a provocateur? If you’re sincere about the issues surrounding her case, buck up.

p.s. Nobody here owes responses to questions. Again, we don’t have the resources which includes time. If you get a reply count yourself lucky.

I reject your accusation that I am concern trolling, and believe that my comments here have been reasonable and backed by a solid underpinning of facts. If you require individual sources/citations, please be specific and I will provide.

Alternatively, I see from your Twitter profile that you too, like bmaz, are a Contributor at this blog. I therefore assume that you too, again like bmaz, have the capacity to expunge my past comments and block my IP address from posting future comments. I’d honestly prefer that you or he exercise that option instead of misrepresenting my remarks and (as he has done) stooping to name-calling and slinging vulgar language.

If we weren’t permitting a diversity of viewpoints you’d have been blocked already. You don’t seem to acknowledge that and instead are doubling down on the hostility because we’re simply not rolling over for you. How uncomfortable for you.

And yes, I’m a contributor here if you bothered to check the About Us here at the site instead of merely trawling the internet for posts related to Manning; I’m also a moderator.

Six hours ago, @DefendAssange—an unverified Twitter account purportedly based in London and billing itself as “run by the legal campaign to free Julian Assange”—tweeted that this blog post by emptywheel “tries to influence Chelsea Manning’s advisors in a not-so-subtle way to get @xychelsea to testify against Assange.” Is that what this is about? If emptywheel believes Chelsea should cooperate with the grand jury, there should be no reluctance to come out and say so in plain language.

The Assange people are nuts. And I have no idea what Marcy would say, but let me be as clear as humanly possible: Chelsea Manning’s “legal” arguments are ludicrous. To the point to where, and no I am not kidding, her attorneys should be sanctioned under Rule 11 for putting forth bad faith arguments in a pleading.

There is one, and only one, reason she is detained, and that is entirely on her and her dubious lawyers. Yes, she should testify to the GJ, as the law requires. The rest is total junk.

And, Alan, let me say one other thing: Do not ever deign to tell us what we need to do. Ever. And if you want to relentlessly troll this site with Manning and Wikileaks bullshit, and propaganda, do a better job, or be gone.

1) Assange is manipulative, grandstanding and self-centered, but there is nothing to indicate he would turn a cooperative witness for US government, even if it could help him to avoid a long sentence. He will rather continue to be a cause célèbre, even as a political prisoner in US.

2) Snowden ended up n Russia not due to friendly ties of Assange with Kremlin, but because US government stranded Snowden on purpose in Russia by revoking his passport while he was in transit. They wanted him in Russia, to ruin his credibility. It would have been so much easier to snatch Snowden from Venezuela, which was his final destination, or from Cuba from where he had a connecting flight to Venezuela. He was not hiding where he was going, the flights were booked under his name, paid with his credit card.

what sort of nut bar would think Australia would want to go the distance to appoint Assange as an ambassador? Who ever came up with that, is smoking British Columbia’s ‘ best product, and its not our wine. .

What if Assange, flipped? its certainly a question which needed to be asked. What does Assange get out of it? What does the U.S.A. get out of it? What do Trump and his get out of it? I consider what the U.S.A. and Trump getting out of it, two different things. Assange flipping may help the American government, however, it might not be a good thing for Trump.

Barr will do what is good for Barr and Trump. Why he is doing it, you do have to wonder. He isn’t a man I’d consider good for the position he is in and he isn’t in it to give the American public what would be in the best interests of the country. He’ll do what is best for Trump and himself, but again I do have to wonder what is in it for Barr, unless he is of the mind set, he is there to make things easier for the corporate elite of the world. Don’t think its has ever passed through Barr’s mind they might consider him just a “tool” to be used to achieve the ends for those he works for.

Will Assange flip? I don’t consider that the best thing to do. The longer he takes to be extradited to the U.S.A., the longer he stays alive. Once he is in American hands, he is toast, just as if he were in Russian hands unless he can work for Trump or Putin to advance their agenda. He may be a liability to both countries. No longer trusting the U.S.A. while under Trump’s control, or as much or as little that it is, I certainly wouldn’t leave my life up to the U.S.A. No jail is nice, but the American jails certainly don’t appear to be up to any one’s standard as a “decent” jail. Its not that Canada’s are much better, I’m sure, but medical care is better.

Why would the Administration want Assange to flip? With Rod Rosenstein presiding, the entire investigation has been a sham. The limitations that were explicitly or implicitly communicated protected the President and his family. It looks like it was done, and produced no incriminating charges. But it was never capable of producing such charges as long as one of conspirators in obstruction was supervising the investigation.

USG not interested in Assange testimony only punishment for revealing crimes. Senator Warner was but then backed down. ICC cannot even investigate crimes. You mentioned elsewhere about Assange blackmail but I could not find such in your Archives. How long has the Grand Jury been on this? And FOIA response that there are 32 pages on Assange and Seth which are secret and top secret emails. Strange how Medium took the article about this down today. https://www.reddit.com/r/WayOfTheBern/comments/bix9jh/my_entire_body_of_work_at_medium_comprised_of_234/ I hope Trump declassify’s these like FISA stuff he said today he decided we would do. The more sunlight the better.

I did find out today thanks to Peter Dale Scott that, “Since the election, Trump has also acted in ways that will protect Alfa Bank from criminal investigations. In July 2018, Brian Benczkowski was narrowly confirmed as head of the Justice Department’s Criminal Division, despite Democratic concerns over the fact that he had previously, while a lawyer at Kirkland & Ellis, represented the Alfa Bank in the investigation of whether its computer servers had contacted the Trump Organization. (1)

Re: Syria files. Wasn’t Sabu already an FBI informant at the point he was offering the emails for preview to Popov? (Arrested and became informant in 2011?) If so, Popov got them because thr FBI gave them to him. (If he got them)